NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-APR-2024
08:04 AM
Dkt. 50 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
NÂ PAPA#I WAWAE #ULA#ULA, an unincorporated association,
RANDAL DRAPER, individual, and WEST MAUI PRESERVATION
ASSOCIATION, a Hawai#i nonprofit organization,
Plaintiffs-Appellants,
v.
DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAI#I,
Defendant-Appellee,
and
DOES 1-27, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 17-100483(3))
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)
Plaintiffs-Appellants Nâ Papa#i Wâwae #Ula#Ula, an
unincorporated association, Randal Draper (deceased), an
individual, and West Maui Preservation Association, a Hawai#i
nonprofit organization (collectively, Appellants), appeal from
the March 11, 2019 Final Judgment (Judgment) entered by the
Circuit Court of the Second Circuit (Circuit Court),1 in favor of
Defendant-Appellee Department of Land and Natural Resources,
State of Hawai#i (DLNR). Appellants also challenge the Circuit
Court's: (1) January 24, 2019 Order Denying [Appellants'] Motion
1
The Honorable Joseph E. Cardoza presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
for Summary Judgment; and (2) January 24, 2019 Order Granting
[DLNR's] Motion for Summary Judgment.
Appellants raise a single point of error on appeal,
contending that the Circuit Court erred in concluding that the
issuance or renewal of six Kâ#anapali commercial use permits
(CUPs) does not constitute an "action" under Hawaii Revised
Statutes (HRS) Chapter 343, the Hawai#i Environmental Policy Act
(HEPA).
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Appellants' point of error as follows:
The Circuit Court determined that the issuance or
renewal of the six CUPs at issue in this case did not constitute
an "action" under HEPA because of the limited nature and scope of
the CUPs. The Circuit Court noted that there are substantial
differences here from the activities permitted by the commercial
aquarium collection permits in Umberger v. DLNR, 140 Hawai#i 500,
513, 403 P.3d 277, 290 (2017). Appellants argue that DLNR's
issuance of the CUPs constitutes a HEPA action because the CUPs
were a "planned undertaking of commercial activities involving
the use of passenger boats and/or thrillcraft at Kâ#anapali beach
and ocean waters," making them a "program or project."2
2
HRS § 200-23 (2011) defines "thrill craft," in pertinent part, as:
"Thrill craft" means any motorized vessel that falls
into the category of personal watercraft, and which:
(1) Is generally less than thirteen feet in length
as manufactured;
(continued...)
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"HEPA defines 'action' as 'any program or project to be
initiated by any agency or applicant.'" Carmichael v. BLNR, 150
Hawai#i 547, 568, 506 P.3d 211, 232 (2022); see also HRS § 343-2
(2010). "'Program' is generally defined as 'a plan or system
under which action may be taken toward a goal' [and] '[p]roject'
is defined as 'a specific plan or design' or 'a planned
undertaking.'" Umberger, 140 Hawai#i at 513, 403 P.3d at 290.
"An important preliminary step in assessing whether an 'action'
is subject to environmental review is defining the action
itself." Sierra Club v. Dep't of Transp., 115 Hawai#i 299, 306
n.6, 167 P.3d 292, 299 n.6 (2007).
HRS § 200-4(a)(6)(A)(i),(ii) (2011) authorizes DLNR to
require permits and fees for "[t]he mooring, docking, or
anchoring of recreational and commercial vessels or the launching
of recreational or commercial vessels at small boat harbors,
launching ramps, and other boating facilities," or "[o]ther uses
of these facilities." Hawai#i Administrative Rules (HAR) § 13-
231-3(a)(6) provides that a boating permit "authorizes the owner
of a commercial vessel to engage in commercial activities as
specified in the permit." Thus, the activities authorized by the
2
(...continued)
(2) Is generally capable of exceeding a speed of
twenty miles per hour;
(3) Can be operated by a single operator, but may
have the capacity to carry passengers while in
operation; or
. . . .
The term includes, but is not limited to, a jet ski,
waverunner, wet bike, surf jet, miniature speed boat,
hovercraft[.]
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CUPs are the activities specified in the CUPs. The CUPs
authorize, in pertinent part:
CUPs T-01 and 02 authorize "THRILL CRAFT RENTALS/SHUTTLING
PASSENGERS TO & FROM KAANAPALI BEACH & THRILL CRAFT PLATFORM
WITHIN THE KAANAPALI THRILL CRAFT OPERATING AREA." 3
CUP C-06 authorizes "PASSENGERS FOR HIRE/EMBARKING &
DISEMBARKING COMMERCIAL PASSENGERS ON KAANAPALI BEACH
SEAWARD OF THE HIGH WATER MARK, WITHIN THE INGRESS EGRESS
AREAS ZONES/CATAMARAN BEACH LANDINGS."
CUP C-01 authorizes "EMBARKING & DISEMBARKING PASSENGERS ON
KAANAPALI BEACH SEAWARD OF THE HIGH WATER MARK. CATAMARAN
SAILING CHARTERS & BEACH LANDINGS."
CUP C-10 authorizes "PASSENGERS FOR HIRE/EMBARKING &
DISEMBARKING COMMERCIAL PASSENGERS FROM KAANAPALI BEACH,
WITHIN THE INGRESS EGRESS AREAS."
In Umberger, the permits at issue authorized extraction
of aquatic life, authorized recreational permittees to collect
1,825 fish or other aquatic life within a one-year period, and
authorized commercial aquarium collection permittees to collect
an unlimited number of fish and other aquatic life. 140 Hawai#i
at 513, 403 P.3d at 290. The Hawai#i Supreme Court determined
that the permitted activities qualified as an "action" and
reasoned:
The course and scope of conduct allowed by both
recreational and commercial aquarium collection permits
issued under HRS § 188-31 and DLNR's administrative scheme
encompass activity that qualifies as a "program" or
"project." The activity is a "specific plan" or "a planned
undertaking" - and, therefore, a "project" - because it
involves the systematic and deliberate extraction of aquatic
life using procedures, equipment, facilities, and techniques
authorized or required by HRS § 188-31 and related
administrative rules for the specific purpose of holding
captive such aquatic life for aquarium purposes in order to
earn profit (in the case of commercial permit holders) or
for non-commercial use (in the case of recreational permit
holders).
In the same vein, both recreational and commercial
aquarium collection are "programs" within the plain meaning
of that word: the "plan or system under which action may be
taken" is the purposeful and methodical extraction of
3
CUP T-03 authorizes exactly the same type of commercial activity
as T-01 and T-02, but some of the language is reworded.
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aquatic life from State waters through the use of fine
meshed nets and traps and the transfer of such aquatic life
to facilities that are capable of keeping the collected
aquatic life alive. The "desired goal" is to take aquatic
life from its habitat and hold it in a state of captivity
for aquarium purposes, . . . in order to earn profits (in
the case of commercial permit holders) or for non-commercial
use (in the case of recreational permit holders).
Additionally, the method by which extraction is accomplished
involves instruments and techniques that enhance the
efficiency and amount of the collection. Accordingly,
aquarium collection conducted under permits issued pursuant
to HRS § 188-31 and DLNR's administrative rules is a
"program or project" and therefore constitutes a HEPA
"action."
Id. at 514-15, 403 P.3d at 291-92 (footnote omitted).
In Carmichael, the supreme court similarly held that
the activity authorized by DLNR's revocable permits – the
"development, diversion, and use of [the] water located across
approximately 33,000 acres of State land in Maui" – constituted
an "action" under HEPA. 150 Hawai#i at 569, 506 P.3d at 233
(internal quotation marks omitted). While DLNR's continuations
of the revocable permits were not HEPA "actions," the applicant's
permitted activity, i.e. developing, diverting, and using water
across large areas of land did constitute an "action." Id. The
supreme court reasoned that the permitted activity constituted an
"action" because it qualified as a "project" or a "program,"
stating:
The activity is a "specific plan" or "planned undertaking" -
and is, therefore, a "project" - because the permits
facilitated a deliberate and coordinated effort by
[defendants] to use their water system to deliver water and
manage water use for the permitted areas. The activity is
also a "plan or system under which action may be taken" -
and is, therefore, a "program" - because although each
revocable permit corresponded to a separate geographical
area, the four areas "were all a part of the same collection
and delivery system extending from Nahiku to Honopou" and
the permits worked in conjunction to meet [defendants'] (and
their customers') water needs.
Id. (internal citations omitted).
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In Umberger, the supreme court emphasized that not all
activities under a permitting scheme qualify as a "program" or
"project" and thus constitute an "action." 140 Hawai#i at 519,
403 P.3d at 296. In that case, the Intermediate Court of Appeals
(ICA) had determined that the aquarium collection permitting
scheme did not constitute an "action" in part because
"[a]ppellants offer no rational distinction or logical reason why
HEPA environmental review procedures should be required for
aquarium fish permits," but not for licenses or permits such as
"hunting licenses, camping permits, collecting permits, access
permits, commercial activity permits (e.g., beach weddings),
commercial harvest permits, and marine event permits." Umberger
v. DLNR, 138 Hawai#i 508, 517, 382 P.3d 320, 329 (App. 2016),
aff'd in part, rev'd in part, Umberger, 140 Hawai#i 500, 403 P.3d
277 (2017). In rejecting this rationale, the supreme court
provided that "[t]he activities authorized by the permitting
schemes that the ICA utilized in its analysis are not effective
points of comparison given their substantial differences, both in
magnitude and nature, from the activities sanctioned by aquarium
collection permits." Umberger, 140 Hawai#i at 519, 403 P.3d at
296. The supreme court stated that "many of the activities under
the permitting regimes that the ICA identified do not appear to
be 'programs' or 'projects.'" Id.
In Carmichael, the supreme court concluded that the
permitted activities constituted a "program" and "project"
because the four permits were all part of the same collection and
delivery system that authorized Alexander & Baldwin, Inc. (A&B)
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and East Maui Irrigation Co. (EMI)4 to move 100 million gallons
of water in East Maui to another A&B subsidiary. See 150 Hawai#i
at 217, 233, 506 P.3d at 553, 569 (noting that the permitted
activity was a "planned undertaking" because "the permits
facilitated a deliberate and coordinated effort by [the
defendants] to use their water system to deliver water and manage
water use for the permitted areas."). In Carmichael, the supreme
court refused to "opine on the validity of other permits not
before the court" because the "duration, magnitude, and nature of
the uses authorized by the revocable permits here . . . may be
distinguishable from other, smaller-scale uses similarly
authorized by the DLNR." Id. at 571-72, 506 P.3d at 235-36.
Here, the CUPs "facilitated a deliberate and
coordinated effort" for each permittee to engage in commercial
activity in Kâ#anapali waters for profit through the use of
authorized equipment such as thrill craft and other vessels,
procedures, and techniques. See id.; Umberger, 140 Hawai#i at
514, 403 P.3d at 291. Thus, we conclude that the activities
authorized by the six CUPs constitute action under HEPA.
The Circuit Court erred in concluding that the
activities authorized by the CUPs do not qualify as a program or
project constituting actions under HEPA.
4
EMI is a subsidiary of A&B. Carmichael, 150 Hawai #i at 553 n.3,
506 P.3d at 217 n.3.
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For these reasons, the Circuit Court's March 11, 2019
Judgment is vacated, and this case is remanded to the Circuit
Court for further proceedings.5
DATED: Honolulu, Hawai#i, April 29, 2024.
On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Lance D. Collins,
for Plaintiffs-Appellants. /s/ Keith K. Hiraoka
Associate Judge
Daniel A. Morris,
Deputy Attorney General, /s/ Karen T. Nakasone
for Defendant-Appellee. Associate Judge
5
We reiterate that the only issue before the court on this appeal
is whether the issuance or renewal of the six K â#anapali CUPs constitutes an
action under HRS Chapter 343, and therefore we do not address other related
issues, e.g., whether a permittee is exempt from preparing an environment
assessment under HRS § 343-6(a)(2) (2010).
8